By

September 23, 1999

He criticizes the liberal Warren Court for breaking new constitutional ground on too many fronts too broadly, while also giving no quarter to the constitutional theories of conservative Supreme Court Justice Antonin Scalia. He once clerked for the late Justice Thurgood Marshall, was executive editor of the Harvard Civil Rights-Civil Liberties Law Review and now maintains that the federal courts were singularly ineffective in desegregating Southern public schools in the wake of the 1954 Brown v. Board of Education Supreme Court decision. He endorses the constitutional right to privacy that the Supreme Court relied upon to guarantee women the right to abortion in Roe v. Wade but also claims that the Court should have invalidated the Texas law banning abortions on an extremely narrow ground, not the one it did. He praises Justice Sandra Day O’Connor as a cautious judge who rules narrowly, is deferential to the political branches and is skeptical about judicial competence–even though she has written needlessly broadly in abortion and affirmative action cases.

You may not have heard of the person holding such seemingly paradoxical and even contradictory views. But some day–and that day may not be far away–Cass Sunstein may be setting law as a federal judge on either a Court of Appeals or the Supreme Court itself. Sunstein, a University of Chicago law professor who is astonishingly versatile and stimulating, may not be the academic equivalent of Halley’s comet, but if his productivity during the years ahead is comparable to that of the recent past, he may soon be popularly seen as equally incandescent. This year alone, he has published two books. One (One Case at a Time) he wrote alone; the other (The Cost of Rights) he co-wrote with Stephen Holmes. Over the past several years Sunstein has written five books and co-edited five others, including two prominent legal texts. During this same period, he has penned dozens of technical legal articles, which are often referred to by courts, including the Supreme Court; testified before Congress; served on prestigious committees; written newspaper columns; and spoken out on compelling disputes such as the impeachment of President Clinton, the independent counsel law, the content of television programming, affirmative action, abortion, the rights of homosexuals and the right to die.

Sunstein’s substantive views make him a centrist, a mindset that has dominated and continues to dominate American law schools. Rejecting sirens from the right and the left, Sunstein rejects the Law and Economics claim that the goal of law is efficiency or wealth maximizing, as well as the Critical Legal Studies emphasis on the indeterminacy of law and the role of judges in protecting and advancing the interests of the powerful. Instead, Sunstein places great emphasis on judges’ being pragmatic and cautious, deferential to the political processes, anti-theoretical and respectful of prior case law, tradition, dominant values and the status quo.

Given his middle-of-the-road views, Sunstein is certainly not a man for all political seasons. But he may well be the man for this season, one featuring politically powerful centrists such as President Clinton and would-be successors to his job Vice President Al Gore and Governor George W. Bush.

‘Deliberative Democracy’

Sunstein claims that the American constitutional scheme aspires to a “deliberative democracy,” in which differences endemic to a pluralistic society are hammered out by legislators who support favored outcomes for valid, principled reasons. Thus, Sunstein rejects the idea that the constitutional system is no more than a simple majoritarianism in which the prevailing view is deemed correct, nor is it an “aggregation of private ‘preferences'” in which domination by the powerful is unobjectionable. A deliberative democracy places a premium on the “exchange of reasons by people with different information and diverse perspectives.” And so, Sunstein writes, “naked preferences,” whether asserted by the majority or the powerful, are “forbidden” unless supported by “reasons.” Sunstein makes clear that constraints exist on the “kinds of reasons that count as valid”: Legislation cannot be justified on grounds that are “religious” in nature, “that deny fundamental equality of human beings,” “that reflect contempt for fellow citizens” or “that attempt to humiliate” citizens.

3

4

5

Unfortunately, this scholar’s effort to construct a theory of deliberative democracy as a basis for constitutional interpretation and the role of courts is ultimately unconvincing. His concept is based on an assumption of political equality among all citizens, after all. But formal equality–one person, one vote–bears little relationship to conditions that affect current legislative and executive agendas at the federal level. Failed efforts to reform campaign financing laws and Governor Bush’s raising of $37 million to finance his presidential campaign put the lie to the claim that all voters have equal influence. In addition, the idea that the federal government routinely functions as a deliberative process is fanciful. Consider two examples. First, the Republican-controlled Congress hogtied the country for a year before it impeached President Clinton. The full House adopted the articles of impeachment so quickly it made no pretense of deliberating, and the Senate redefined a trial to mean a proceeding without witnesses. Second, for yet another year–and even in the immediate wake of additional staggering school killings–Congress failed to pass effective legislation controlling guns, even the most powerful assault weapons, used by neither hunters nor shopkeepers.

Although Sunstein’s concept of deliberative democracy may give some theoretical texture to his interpretive approach to the Constitution and his view of the role of courts in society, it is ultimately extremely vague. In fact, Sunstein’s concept is so fuzzy it would be consistent with constitutional interpretations and a judicial role quite at odds with his own particular preferences. Courts that expansively interpreted the Constitution and aggressively overturned legislative decisions, and courts that interpreted narrowly and routinely deferred to legislative choices, could both claim adherence to Sunstein’s conception of deliberative democracy.

Interpreting the Constitution

Arguments over how the Supreme Court should construe ambiguous constitutional terms have bedeviled the Republic since its founding. In essence, the fierce debate is fueled by the idea that federal judges, who are appointed for life, are for all practical purposes unaccountable for their decisions. Given the fact that the nation’s primary political commitments are to its democratic processes, the question becomes what restraints limit the power of–to use Justice Scalia’s shrill term–the “Imperial Judiciary.” Although senators frequently state during confirmation hearings that judges should “apply” the law, not “make” it, everyone knows that judges make law, at least in the sense that most important cases arise under constitutional provisions that are so broad that a judge has ample latitude to decide in any of several different ways. Thus, debates over how to interpret the Constitution often boil down to one’s attitude toward judicial discretion. If broad judicial discretion is understood as a mask hiding judicial imposition of personal views on the nation, the odds are that one would strongly favor an interpretive theory such as originalism or literalism, which aim at sharply confining judicial discretion. If judicial discretion is considered intrinsic to the enterprise of interpreting the Constitution–as Chief Justice John Marshall, who certainly favored investing the judiciary with substantial power, believed when he wrote almost 200 years ago, “We must never forget that it is a constitution we are expounding”–and if judges are considered an important brake on misguided democratic impulses and a critical last resort for protecting political minorities and basic personal liberties, one is likely to favor construing the text of the Constitution not only by reference to its structure and history but also to traditions and perhaps moral and political theories.

Get a FREE PDF copy of our 150th anniversary issue.

It is within this crucible that Sunstein attempts to ride the middle ground. Because he often defines his approach to interpreting the Constitution by contrasting it with others, it is helpful to review interpretive theories he rejects. Sunstein takes the interpretive doctrine known as originalism and championed by Justice Scalia (as well as former Judge Robert Bork) to the woodshed. That doctrine asserts that judges are obligated to construe the Constitution in accord with the meaning given it by those who wrote and ratified it. Scalia argues that such an approach limits judicial discretion and protects the political branches from undue judicial interference. Many of the basic problems in Scalia’s thinking are helpfully identified by Sunstein: Scalia’s approach causes judges to precommit themselves to outcomes in future cases even though they may lack information or do not fully understand the values at stake; they may short-circuit the democratic process in doing so. Scalia’s originalism also fails to promote democracy because it does not come to terms with the internal morality of democratic ideals. And neither is originalism the only interpretive approach to the Constitution that would limit judicial discretion, promote stability and enhance democratic self-government.

Sunstein’s next targets are interpretive theories that reject the originalist claim that the meaning of the Constitution is tethered to historical understandings. Instead, they direct judges to employ values and perspectives not explicitly mentioned in the Constitution to interpret its ambiguous provisions, and they urge that judges act in accord with their best understanding of what makes “best sense of the relevant provision.” Sunstein places into this category theorists who are thought of as political liberals (such as Ronald Dworkin and Laurence Tribe, who advocate personal rights) as well as theorists who are political conservatives (such as Richard Epstein of the University of Chicago Law School, who supports property rights), but he mainly aims his fire at Dworkin. He claims that Dworkin “thinks that the [Supreme] Court should be willing to invalidate legislation if good arguments from principle suggest that legislation is invalid, at least if those arguments ‘fit’ with the existing legal materials.” Sunstein claims that Dworkin’s effort to turn the Court into a forum that declares high principles seriously “misconceives the role of the Supreme Court in American government, a role that very much grows out of the Court’s understanding of its limited capacities and its potential for error.”

Sunstein also criticizes the view that the Court should invalidate legislation only when such outcomes reinforce the democratic process. This perspective holds that the courts should act “to improve the democratic character of the political process…by protecting rights that are preconditions for a well-functioning democracy, and also by protecting groups that are at special risk because the democratic process is not democratic enough.” Sunstein finds this approach, which is generally associated with its most prominent proponent, John Hart Ely, seriously flawed for two reasons. Any theory of judicial review must be built on substantive reasons, Sunstein contends, and Ely’s process-oriented approach fails to identify those specifically. Limiting a court’s ability to strike down laws to circumstances in which that would reinforce democracy is too restrictive; courts must also invalidate legislation that conflicts with minimal substantive guarantees.

Sunstein’s approach to interpreting the Constitution begins with the text, but he does not believe it answers all or even most of the important questions presented to the Supreme Court. Because our founding document is “open-ended,” Sunstein claims that the interpreter must examine the structure of the constitutional plan, which provides a “degree of assistance.” Here again, however, Sunstein concedes that structure goes only so far in helping to interpret important aspects of the Constitution involving such matters as “scientific speech, government funding of the arts and public education, affirmative action, abortion, campaign finance regulation, or pornography.” In these circumstances, Sunstein states that it is “reasonable to look to history,” even though there are “major limits” to this approach. He concedes that many constitutional issues may be properly resolved only by resorting to “ideas external to text and structure,” which must be justified in “moral and political terms.”

But having once made that concession, Sunstein emphasizes what in his mind is an important point: He claims that it is necessary only that judges have “good…rather than bad” interpretive principles and that this is a far cry from insisting that judges “make the law ‘the best it can be'” by identifying it with broad principles of political philosophy. Thus, although Sunstein identifies what he believes to be a “set of minimal substantive commitments” on which US law “has converged”–including the right to free political dissent, protection against discrimination on the basis of one’s religious beliefs, freedom from torture and police abuse, and freedom from subordination on the basis of race and sex–he opposes the Court’s protecting such commitments by rulings that hinge on broad principles of political theory. Instead, the Court should rule narrowly, deciding only what is needed to dispose of the dispute at hand. Thus, in disputes involving affirmative action, homosexuality, gender, free speech and the right to die–to name only a few–Sunstein favors emphasizing the particular aspects of a case and avoiding rulings cast on principled conceptions of human dignity, individual liberty and substantive equality (the democratic process itself, not the judiciary, should respond to these divisive matters, in his view).

Sunstein’s endorsement of reaching outside the Constitution for values to use in interpreting it leaves him vulnerable to the charge that he favors judges making law out of whole cloth. His denial that this permits judges free rein makes him seem inconsistent, and lumps him as well into a cadre of legal intellectuals who deny that a judge’s political and social values powerfully influence his or her constitutional interpretation. Sunstein’s refusal to root the values and perspectives he favors in broad principles of political morality, combined with his insistence that the Court develop constitutional doctrine by means of limited, narrowly conceived rulings, opens him to the charge of favoring an ad hoc, unprincipled approach to interpreting the Constitution.

The Role of the Courts

Sunstein believes that courts should play only a limited role in the governing structure by using technical doctrines to avoid reaching substantive decisions–doctrines the late Alexander Bickel termed the “passive virtues”–and by rendering judgments of limited impact by employing “incompletely theorized agreements” and “analogical reasoning.” Incompletely theorized agreements are judicial outcomes “backed not by abstract theories but by unambitious reasoning on which people can converge from diverse foundations.” Analogical reasoning forces a judge to ask: How does this case compare with those cases that have come before? Sunstein maintains that the use of analogical reasoning “reduces the need for theory-building…by creating a shared and relatively fixed background from which diverse judges can work” and has the advantage of permitting judges to decide cases on narrow grounds.

Sunstein offers overlapping reasons to support what amounts to his version of that hallowed conservative plaint, judicial restraint. First, he contends that courts are poor instruments of social reform. “Study after study,” he writes, has established that courts are “ineffective in bringing about social change,” and he enlists Roe v. Wade to support his point. Roe increased women’s access to safe abortion, but it did not “dramatically increase the actual number and rate of abortions.” More “fundamentally,” he contends that Roe produced negative political consequences because it “contributed to the creation of the ‘moral majority'; helped defeat the Equal Rights Amendment; prevented the eventual achievement of consensual solutions to the abortion problem; and severely undermined the women’s movement, by defining that movement in terms of the single issue of abortion.”

Judicial restraint is good, Sunstein argues, because it contributes to social stability. Reasonable pluralism is a defining characteristic of free societies, and one characteristic of political liberalism is “to ensure that diverse people, operating from their own foundational accounts, can converge on a range of basic principles.” Because diverse groups might disagree over the reason that a verdict is correct but nonetheless support it, courts can help foster what John Rawls terms “overlapping consensus” by rendering incompletely theorized judgments. Another advantage in exercising restraint is that judges may err by selecting incorrect normative rules, by failing to perceive the immediate consequences of their decisions and by overlooking the longer-term impact of their rulings. Last, judicial restraint promotes democracy because it tends to leave issues open for deliberation.

Sunstein’s concept of judicial restraint plays out as something quite different from what the term usually means, however. Traditional judicial restraint–frequently associated with Justice Felix Frankfurter–denotes an unwillingness to invalidate legislation. In contrast, Sunstein favors judicial rulings that strike down laws when appropriate, but only for narrowly conceived reasons that do not embody–to use his terms–“wide” and “deep” implications for other legal and public-policy issues.

Three examples may help make Sunstein’s concepts concrete. As noted, although he does not claim that the Supreme Court should have upheld the Texas statute in Roe v. Wade, he is critical of the Court’s reasoning. He maintains that the Court should simply have stated–since the pleadings indicated that the plaintiff had been raped–that a “state may not forbid a woman from having an abortion in a rape case, or that a state may not ban all abortions in all circumstances.” Sunstein concedes that such a decision would have left women’s right to abortion in “considerable doubt,” but he speculates that the “democratic process” might have done “much better with the abortion issue if the Court had proceeded more cautiously and in a humbler and more interactive way.”

Sunstein applauds the 1996 decision in Romer v. Evans, in which the High Court concluded for the first time that discrimination against homosexuals violates the equal protection clause. He is particularly supportive of the reasoning there because of its narrowness, which left completely unaddressed such controversial issues as the ban on same-sex marriages. Sunstein also approves of the 1997 decision in the “right to die” case Washington v. Glucksberg, in which the Supreme Court denied people who are terminally ill the right to end their lives with the assistance of a physician. The hotly contested case drew the submission of a legal memorandum written primarily by Ronald Dworkin and signed by five other nationally prominent philosophers: Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon and Judith Jarvis Thompson. The brief argued that in a free society individuals must be permitted to make decisions on deeply personal matters that concern “how and why human life has value.” Drawing support from the Court’s abortion cases, the brief contended that every person “has a right to make the ‘most intimate and personal decisions central to personal dignity and autonomy,'” including “some control over the time and manner of one’s death.” But Sunstein has little patience for the philosophers’ position. Not only does he oppose reaching decisions by deductive reasoning from first philosophical principles but he sees the right to die as divisive and implicating facts and values more appropriate for legislative consideration and compromise than judicial declaration.

Sunstein’s general assault on the federal courts is unwarranted. Courts are imperfect social reformers, but they are far more effective than the professor allows. In addition, Sunstein’s claim that courts are ineffective social reformers is highly contingent on the failure of the executive and legislative branches to assist courts in enforcing minimal constitutional requirements upon complex and intransigent institutions such as prisons, schools and mental hospitals. Few would claim that courts can effectively transform entrenched and resistant bureaucracies without assistance. Indeed, the very reason courts possess the great power to say what the law is is that the “least dangerous branch” is so precariously dependent on the executive and legislative arms of government for enforcement of its orders.

Sunstein is surely correct that judges should be modest about their competency. The rub comes, however, when judges must decide how to dispose of a matter. What degree of confidence must a judge possess in the correctness of a rule and its likely consequences before enshrining it as a basis for a judgment? Judges cannot calibrate subjective factors with slide-rule precision. Thus, apart from being a sensible reminder for modesty and caution, an emphasis on judicial humility offers little concrete guidance.

Then, too, the premise that legislatures (as opposed to courts) are more nurturing of the status quo and better suited to promoting stability is not necessarily correct. The “Contract With America” revolution of 1994, President Lyndon Johnson’s civil rights and antipoverty legislative programs of the mid-sixties and President Franklin Roosevelt’s New Deal programs of the thirties–to name a few of the obvious ones–are moments of startling shifts produced by legislative action. In addition, incremental change may not always be the best way to engender stability. Judicial rulings framed in broad terms protecting personal liberties and political minorities may contribute mightily to long-term political stability even if they create immediate contentiousness. Sunstein’s suggestion that judicial decisions threatening to the status quo would be calmly integrated if the Supreme Court moved in incremental, legalistic steps seems naïve. It is hard to imagine that the Christian right would be any more accepting of a woman’s right to an abortion if the Supreme Court had built toward that result in three decisions over a decade’s time.

In urging his version of judicial restraint, Sunstein, except at the extreme margins, proves to be agnostic when it comes to substantive values. Restraint is preferable to broad principles of political morality even though “restrained” judges might prefer–within wide boundaries–state power to individual liberty, private property rights to personal or community ones, security over freedom and states’ rights over federal power. In the tradition of the eighteenth-century English philosopher Edmund Burke, Sunstein is powerfully protective of the status quo.

The Current Supreme Court

In his most recent book, One Case at a Time, Sunstein is enthusiastic about the current Supreme Court, which he considers minimalist (one favoring his version of judicial restraint, that is). Sunstein claims that six of the current nine Justices–Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O’Connor, John Paul Stevens and David Souter–are cautious about broad rulings and ambitious pronouncements. Minimalists resist adopting broad theories; they do not see outcomes as reflecting rules or theories laid down in advance; they pay close attention to the particulars of individual cases. Since the qualities that define a minimalist judge are unrelated to substantive outcomes, a liberal, a conservative or anything in between could fill the bill, as Sunstein uses the term.

These six Justices are contrasted most notably with Scalia but also with Chief Justice William Rehnquist and Justice Clarence Thomas, who, Sunstein states, “think it is important for the Court to lay down clear, bright-line rules, producing stability and clarity in the law.” Sunstein also contrasts the minimalist majority with prior Courts, contending that the character now “is sharply distinguishable” from that when Earl Warren was Chief Justice. Then, it embraced “theoretically ambitious arguments about equality and liberty.”

But it is disputable whether the current Court is a minimalist one. Presidents Reagan and Bush appointed Justices O’Connor, Kennedy and Souter, at least partially, on the assumption that they would help to overrule women’s right to abortion, but when presented with the opportunity, they did not. Moreover, in a prominent joint opinion in 1992 they each signed upholding that right (Planned Parenthood of Southeast Pennsylvania v. Casey), they declared a broad conception of legally protected liberty. In majestic terms they wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

In two affirmative action cases decided over the past decade, Justice O’Connor, writing for the majority, invalidated race-based classifications aimed at helping racial minorities. In doing so, she employed a demanding form of judicial review–what lawyers call “strict scrutiny”–that the Court historically used in reviewing race-based classifications adopted by whites to harm racial minorities. In defense of using the same standard in these two diametrically opposed cases, O’Connor announced a broad constitutional rule: Whites who are disadvantaged by other whites in order to assist African-Americans (who have been the victims of past discrimination by whites) are entitled to the same constitutional protection as African-Americans when they allege that whites have discriminated against them. O’Connor’s claim that all discrimination based on race is properly subject to the same legal standard is needlessly broad and essentially sounded the death knell to affirmative action programs. In doing so, O’Connor rendered irrelevant to the judicial analysis who is responsible for the discrimination, who is advantaged and disadvantaged by it, and whether the purpose of the discrimination is to aid a minority historically discriminated against.

Most recently, O’Connor and Kennedy joined Rehnquist, Scalia and Thomas in three separate opinions that granted states enhanced autonomy from federal control. Justice Kennedy wrote the majority opinion in perhaps the most significant of the three (Alden v. Maine), in which the Court concluded that the states were immune from suit by state workers who claimed violations of federal labor laws. In terms striking in their latitude, Justice Kennedy trumpeted the call for state immunity: The Constitution “‘specifically recognizes the States as sovereign entities.’… They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.” Justice Kennedy did not, as a minimalist should, employ incompletely theorized doctrine to immunize the states from federal power. Instead, his legal doctrine is a broadly stated political principle.

If a minimalist recognizes that the “real forum of high principle is politics, not the judiciary,” as Sunstein writes, and that “the most fundamental principles are developed democratically, not in courtrooms,” he is simply wrong to argue that the current court is quintessentially minimalist.

Although always imaginative and provocative, Sunstein’s approaches are much less compelling than those that tend to demarcate the polar positions in legal debates. That may well be because others anchor their positions firmly in political theory and shape them so that they have internal coherence. Sunstein, fleeing the substantive preferences and theoretical postulates of the right and left, embraces a middle that emphasizes pragmatism, the status quo and deference toward the politically accountable branches of government. In so doing he is part of a powerful current that includes not only law professors but judges at all levels–as well as the political leaders who will select the judges who will make the law for the next generation.

David Rudenstine David Rudenstine, author of The Day the Presses Stopped: A History of the Pentagon Papers Case (California) and other books, is dean of the Benjamin N. Cardozo School of Law,
Yeshiva University